A. BACKGROUND
1. This appeal arises from the judgment of the Machakos Small Claims Court delivered on 5th June 2025. The Appellant, who was the claimant before the Small Claims Court, sought judgment against the Respondent for Kshs. 875,000, costs and interest.
2. The Appellant appealed to this Honourable court against a judgment and decree of Hon. B.A. Luova (Adjudicator) delivered on 5th June 2025 in Machakos Small Claims Court SCCCOMM/E591/2024 based on the following grounds:-
i) The learned adjudicator at Machakos Small Claims Court grossly erred in fact and law by upholding that the only amount that can be proven in the entire claim was Kenya Shillings Three hundred Ten (Kshs.310,000/=) against a liquidated claim of Kenya Shillings Eight Hundred and Seventy Five (Kshs.875,000/=)
ii) The learned adjudicator grossly erred in law and fact by failing to appreciate the fact that car registration KDD 537G valued at Kshs.875,000/= was bought by the Respondent who never proved any contribution towards its purchase and went ahead to own it as his personal property with a promise to refund the Appellant her contribution which is the entire cost of the car valued at Kenya Shillings Eight Hundred and Seventy Thousand(Kshs.875,000/=).
iii) The learned Adjudicator at Machakos Small Court grossly erred in law and fact by failing to interrogate the source of the entire purchase price of motor vehicle KDD 537G without any proof of contribution by the Respondent wherein the Appellant proved that she provided the monies for the entire venture.
iv) The said Adjudicator Erred in law and fact by rewriting the joint venture agreement between the Appellant and the Respondent in that upon the collapse of the joint venture, and the Respondent holding the property of the joint venture, the Respondent was legally and duty bound to restitute the Appellant so that all parties can reap equally from the joint venture.
v) The learned adjudicator erred in law and fact by failing to appreciate that the joint venture having been orally made, and whatsApp messages confirming the implied joint venture agreement, the learned adjudicator would not have proceeded to apply a different standard to interrogate the transactions between the Appellant and Respondent which are anchored on the communication and the joint venture terms which bound all the parties.
vi) The learned adjudicator erred in law and fact by failing to appreciate that the Respondent acknowledged owning and converting the joint venture property being motor vehicle KDD 537G in the exclusion of the Appellant and the Respondent had a duty to refund the Appellant her capital investment in the joint venture which balance is Kenya Shillings Five Hundred and Sixty Five (Kshs.565, 000/=).
vii) The learned adjudicator erred in law and fact by failing to appreciate that the Respondent had a fiduciary duty to the Respondent in the joint venture.
viii) The decision of the said adjudicator was against the weight of the evidence adduced.
3. The claim was founded on an alleged oral joint venture agreement between the parties for the purchase and resale of motor vehicle registration number KDD 537G, Toyota Ractis. The Appellant’s case was that she contributed money towards the venture, but the Respondent appropriated the motor vehicle and failed to account.
4. The Respondent admitted receipt of Kshs. 310,000/= but denied receipt of the balance claimed. He also filed a counterclaim for Kshs. 340,000/=.
5. Upon considering the material placed before it, the learned adjudicator found that there was an oral agreement between the parties, supported by WhatsApp communication. The adjudicator further found that the Respondent breached the agreement by appropriating the vehicle and failing to clearly explain what transpired.
6. However, on quantum, the adjudicator held that only Kshs. 310,000 had been proved as having been paid to the Respondent. The balance of Kshs. 565,000 was rejected because the bank statement relied upon by the Appellant did not show the recipient account or number for the disputed transfers, and some entries were marked as personal use. The Respondent’s counterclaim was dismissed.
7. Judgment was therefore entered in favour of the Appellant for Kshs. 310,000/=, together with costs and interest. Being dissatisfied with the partial dismissal of her claim, the Appellant filed this appeal.
8. I have considered the memorandum of appeal, the record of appeal, the judgment of the Small Claims Court, the parties’ rival positions and the applicable law.
B. ISSUES FOR DETERMINATION
9. The issues for determination are:
i. Whether the appeal raises a proper point of law under section 38 of the Small Claims Court Act;
ii. Whether the learned adjudicator erred in law on the burden of proof by awarding only Kshs. 310,000/= and declining the balance of Kshs. 565,000/=
iii. Whether this is a proper case for remittal to the Small Claims Court for reconsideration of the disputed balance.
C. ANALYSIS
i. Scope of the High Court’s jurisdiction on appeal from the Small Claims Court
10. The starting point is section 38(1) of the Small Claims Court Act, which provides that a person aggrieved by the decision of the Small Claims Court may appeal to the High Court on matters of law only.
11. This statutory limitation is important. It means that an appeal from the Small Claims Court is not an ordinary first appeal in which the High Court freely re-evaluates the entire evidence and substitutes its own factual conclusions. The High Court may interfere only where the appeal discloses an error of law.
12. The High Court has repeatedly applied this limitation. In Best Cars Limited t/a Impact Motors v Omoke & another [2024] KEHC 9594 (KLR), the Court held that section 38(1) expressly limits appeals from the Small Claims Court to matters of law only. The Court struck out grounds of appeal which were factual or mixed questions of fact and law, and retained only the ground that disclosed a pure point of law.
13. Similarly, in Directline Assurance Company Limited v Kombo [2024] KEHC 1743 (KLR), the Court dismissed an appeal from the Small Claims Court for want of jurisdiction after finding that the grounds raised matters of fact or mixed fact and law rather than pure questions of law.
14. The same approach was taken in Mbochi v Kanja [2023] KEHC 26004 (KLR), where the Court held that issues inviting the High Court to reconsider evidence and factual findings do not fall within section 38 of the Small Claims Court Act. The Court emphasised that an appeal from the Small Claims Court must be confined to matters of law.
15. In Logiserve Limited v Microsa Security Services Limited [2025] KEHC 3383 (KLR), the High Court reiterated that disputes on the contract, the amount due and the evidence presented before the Small Claims Court are factual issues, and that factual determinations by the adjudicator are generally final unless a genuine legal error is demonstrated.
16. The same principle appears in Mwangi v Mburu [2025] KEHC 6942 (KLR), where the Court struck out an appeal as incompetent because the grounds challenged the trial court’s findings on liability and quantum, which required a re-evaluation of evidence. The Court held that such an exercise was outside the High Court’s mandate under section 38.
17. Guided by those authorities, this Court must be careful not to convert this appeal into a rehearing of the factual question whether the Appellant paid the disputed Kshs. 565,000/= to the Respondent.
ii. Whether the Appellant established an error of law on burden of proof
18. The Appellant’s main complaint is that the learned adjudicator should have awarded the full amount of Kshs. 875,000/=. The Respondent admitted only Kshs. 310,000/=. The balance of Kshs. 565,000 was disputed.
19. The burden of proof in civil proceedings is governed by sections 107, 108 and 109 of the Evidence Act.
20. Section 107 provides that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which that person asserts must prove that those facts exist. Section 108 provides that the burden of proof lies on the person who would fail if no evidence at all were given on either side. Section 109 provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.
21. The general principle was stated in Karugi & another v Kabiya & 3 others [1987] KLR 347, where the Court of Appeal held that the burden remains on the plaintiff to prove his or her case on a balance of probabilities, and that burden is not lessened merely because the defendant’s case is weak.
22. Therefore, in the present matter, the Appellant bore the burden of proving that she paid the Respondent Kshs. 875,000. The Respondent’s admission of Kshs. 310,000 proved that part of the claim. The balance of Kshs. 565,000 remained disputed and had to be proved by credible evidence.
23. The learned adjudicator considered the evidence and found that the bank statement relied on by the Appellant did not show the recipient account or number for the disputed transfers. The adjudicator also noted that some entries were marked as personal use. On that basis, the adjudicator found that the disputed balance had not been proved.
24. That was a factual evaluation of the evidence. The adjudicator did not reject the Appellant’s claim for want of a technical document. He rejected the disputed balance because the evidence did not sufficiently link the disputed transfers to the Respondent.
25. The Small Claims Court is indeed not bound by strict rules of evidence. However, that does not mean a claimant is relieved of the duty to place credible material before the Court. In Mati & another v Gicheru [2025] KEHC 2062 (KLR), the High Court held that although section 32 of the Small Claims Court Act allows the Small Claims Court to receive evidence not ordinarily admissible, that provision does not absolve a party from the burden of adducing credible evidence to prove the claim.
26. That principle applies here. The Appellant did not need to prove the disputed balance with unnecessary technical rigidity, but she still had to present credible material showing that the disputed transfers went to the Respondent or were made for his benefit pursuant to the joint venture.
iii. Whether section 112 of the Evidence Act shifted the burden to the Respondent
27. The Appellant’s argument may also be understood as relying on section 112 of the Evidence Act. That section provides that in civil proceedings, where any fact is especially within the knowledge of any party, the burden of proving or disproving that fact is upon that party.
28. Section 112 is a useful evidential rule. It prevents a party from withholding facts peculiarly within that party’s knowledge and then insisting that the other party prove what the other party cannot reasonably access.
29. However, section 112 does not displace the primary burden under sections 107, 108 and 109. It does not permit a claimant to avoid laying a sufficient evidential foundation for the claim.
30. In Juma & 2 others v David [2023] KEHC 26015 (KLR), the High Court held that section 112 applies only where the relevant facts are especially within the knowledge of a party, and that the evidential burden shifts only after the claimant has laid a sufficient foundation. The Court declined to shift the burden where the claimant had not first established the necessary factual basis.
31. That reasoning is directly applicable. In the present matter, there is a distinction between two questions.
32. The first question is what happened to the vehicle after the Respondent took control of it. That may properly be a matter especially within the Respondent’s knowledge. If the issue were the whereabouts of the vehicle, whether it was sold, the sale price, or the proceeds of sale, section 112 could properly arise.
33. The second question is whether the Appellant paid the disputed Kshs. 565,000 to the Respondent. That was the fact asserted by the Appellant. The Appellant was the person relying on the bank statement and claiming that the disputed entries represented payments to the Respondent. She was therefore required to establish the necessary link between the disputed entries and the Respondent.
34. The recipient details of transfers allegedly made by or on behalf of the Appellant were matters capable of proof by the Appellant through bank transfer confirmations, recipient account details, transaction advices, M-Pesa statements, acknowledgments, WhatsApp messages, or a reconciliation showing how the disputed entries reached the Respondent.
35. The Respondent’s failure to account for the vehicle does not automatically prove that the Appellant paid him the additional Kshs. 565,000. Breach of the joint venture and proof of the amount paid are related but distinct issues.
36. Therefore, section 112 could not properly be used to cure the evidential gap identified by the adjudicator. The adjudicator did not commit an error of law by requiring the Appellant to prove that the disputed balance was paid to the Respondent.
iv. Whether section 119 of the Evidence Act assisted the Appellant
37. The Appellant relies on section 119 of the Evidence Act, which allows the court to presume the existence of certain facts having regard to the common course of natural events, human conduct and public and private business.
38. However, Section 119 is discretionary. It permits reasonable presumptions from proved facts. It does not allow the court to speculate or to replace proof with conjecture.
39. In this case, the proved facts supported the finding that there was an oral agreement and that the Respondent breached it. Those facts justified judgment for what was admitted and proved. They did not, without more, prove that the disputed bank entries were payments to the Respondent.
40. The adjudicator was therefore entitled to decline to presume that the disputed Kshs. 565,000/= was paid to the Respondent merely because the Respondent had breached the joint venture arrangement.
v. Whether this is a proper case for remittal
41. The next question is whether, even if this Court cannot award the disputed balance, the matter should be remitted to the Small Claims Court for reconsideration.
42. The Small Claims Court considered the material before it and made a finding that only Kshs. 310,000/= was proved. It did not fail to determine the issue of quantum. It determined it against the Appellant to the extent of the disputed balance.
43. To remit the matter in these circumstances would risk giving the Appellant a second opportunity to prove what she failed to prove before the trial court.
44. The law does not favour the reopening of matters merely to allow a party to fill gaps in evidence. In Wanjie & others v Sakwa & others [1984] KLR 275, the Court of Appeal held that additional evidence on appeal should not be admitted to enable a party to patch up weak points in his case or fill omissions in the evidence.
45. The same principle was restated by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR, where the Court held that additional evidence on appeal should be allowed sparingly and with abundant caution, and not for the purpose of making a fresh case or filling gaps left at trial.
46. More recently, in Freedom Limited v Mbarak [2024] KESC 76 (KLR), the Supreme Court again emphasized that additional evidence should not be introduced on appeal to fill gaps in a party’s case, and that a party must show that the evidence could not have been obtained with reasonable diligence at trial.
47. Although the present case is not an application for additional evidence, the same caution applies. A remittal which has the practical effect of reopening the evidential question would undermine the finality of trial proceedings and allow the Appellant to repair a case that was not sufficiently proved.
48. No application for admission of additional evidence was made before this Court. No complaint has been shown that the Small Claims Court refused to admit relevant evidence, denied the Appellant a fair opportunity to present her case, or ignored evidence already on the record. The complaint is simply that the adjudicator reached a factual conclusion adverse to the Appellant on the disputed balance.
49. That is not enough to justify remittal.
50. The Court of Appeal in Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123 stated the general duty of a first appellate court to reconsider the evidence and draw its own conclusions. However, that general principle must yield to the specific statutory limitation in section 38 of the Small Claims Court Act, which confines this Court to matters of law only.
51. The result is that this Court must respect the adjudicator’s factual finding unless it is shown to have been based on no evidence, a misapprehension of the evidence, or a wrong legal principle. No such error has been established here.
D. DISPOSITION
52. The learned adjudicator correctly appreciated that the Appellant had proved an oral agreement and that the Respondent had breached it.
53. The adjudicator also correctly awarded the admitted and proved sum of Kshs. 310,000/=.
54. The adjudicator’s decision to reject the disputed balance of Kshs. 565,000/= was a factual finding based on the evidence placed before the Small Claims Court. It did not disclose an error of law within section 38 of the Small Claims Court Act.
55. Section 112 of the Evidence Act did not shift the burden of proving payment of the disputed balance to the Respondent. The Appellant remained under a duty to prove that the disputed transfers were made to the Respondent or for his benefit.
56. This is also not a proper case for remittal, as remittal would amount to reopening a factual issue already determined and would risk giving the Appellant a second chance to prove a case that was not proved at trial.
57. The appeal therefore fails.
ORDERS
58. The appeal is dismissed.
59. The judgment of the Machakos Small Claims Court delivered on 5th June 2025 in SCCCOMM/E591/2024 is upheld in full.
60. For avoidance of doubt, the award in favour of the Appellant remains Kshs. 310,000/=, together with costs of Kshs. 30,000/= and interest at court rates from the date ordered by the Small Claims Court until payment in full.
61. The dismissal of the Respondent’s counterclaim is upheld there being no cross-appeal against that finding.
62. The Respondent shall have the costs of this appeal.
DATED, SIGNED AND DELIVERED THIS 30TH DAY OF JUNE 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JUSTICE JOYCE GANDANI
JUDGE
It is so ordered.
1. This appeal arises from the judgment of the Machakos Small Claims Court delivered on 5th June 2025. The Appellant, who was the claimant before the Small Claims Court, sought judgment against the Respondent for Kshs. 875,000, costs and interest.
2. The Appellant appealed to this Honourable court against a judgment and decree of Hon. B.A. Luova (Adjudicator) delivered on 5th June 2025 in Machakos Small Claims Court SCCCOMM/E591/2024 based on the following grounds:-
i) The learned adjudicator at Machakos Small Claims Court grossly erred in fact and law by upholding that the only amount that can be proven in the entire claim was Kenya Shillings Three hundred Ten (Kshs.310,000/=) against a liquidated claim of Kenya Shillings Eight Hundred and Seventy Five (Kshs.875,000/=)
ii) The learned adjudicator grossly erred in law and fact by failing to appreciate the fact that car registration KDD 537G valued at Kshs.875,000/= was bought by the Respondent who never proved any contribution towards its purchase and went ahead to own it as his personal property with a promise to refund the Appellant her contribution which is the entire cost of the car valued at Kenya Shillings Eight Hundred and Seventy Thousand(Kshs.875,000/=).
iii) The learned Adjudicator at Machakos Small Court grossly erred in law and fact by failing to interrogate the source of the entire purchase price of motor vehicle KDD 537G without any proof of contribution by the Respondent wherein the Appellant proved that she provided the monies for the entire venture.
iv) The said Adjudicator Erred in law and fact by rewriting the joint venture agreement between the Appellant and the Respondent in that upon the collapse of the joint venture, and the Respondent holding the property of the joint venture, the Respondent was legally and duty bound to restitute the Appellant so that all parties can reap equally from the joint venture.
v) The learned adjudicator erred in law and fact by failing to appreciate that the joint venture having been orally made, and whatsApp messages confirming the implied joint venture agreement, the learned adjudicator would not have proceeded to apply a different standard to interrogate the transactions between the Appellant and Respondent which are anchored on the communication and the joint venture terms which bound all the parties.
vi) The learned adjudicator erred in law and fact by failing to appreciate that the Respondent acknowledged owning and converting the joint venture property being motor vehicle KDD 537G in the exclusion of the Appellant and the Respondent had a duty to refund the Appellant her capital investment in the joint venture which balance is Kenya Shillings Five Hundred and Sixty Five (Kshs.565, 000/=).
vii) The learned adjudicator erred in law and fact by failing to appreciate that the Respondent had a fiduciary duty to the Respondent in the joint venture.
viii) The decision of the said adjudicator was against the weight of the evidence adduced.
3. The claim was founded on an alleged oral joint venture agreement between the parties for the purchase and resale of motor vehicle registration number KDD 537G, Toyota Ractis. The Appellant’s case was that she contributed money towards the venture, but the Respondent appropriated the motor vehicle and failed to account.
4. The Respondent admitted receipt of Kshs. 310,000/= but denied receipt of the balance claimed. He also filed a counterclaim for Kshs. 340,000/=.
5. Upon considering the material placed before it, the learned adjudicator found that there was an oral agreement between the parties, supported by WhatsApp communication. The adjudicator further found that the Respondent breached the agreement by appropriating the vehicle and failing to clearly explain what transpired.
6. However, on quantum, the adjudicator held that only Kshs. 310,000 had been proved as having been paid to the Respondent. The balance of Kshs. 565,000 was rejected because the bank statement relied upon by the Appellant did not show the recipient account or number for the disputed transfers, and some entries were marked as personal use. The Respondent’s counterclaim was dismissed.
7. Judgment was therefore entered in favour of the Appellant for Kshs. 310,000/=, together with costs and interest. Being dissatisfied with the partial dismissal of her claim, the Appellant filed this appeal.
8. I have considered the memorandum of appeal, the record of appeal, the judgment of the Small Claims Court, the parties’ rival positions and the applicable law.
B. ISSUES FOR DETERMINATION
9. The issues for determination are:
i. Whether the appeal raises a proper point of law under section 38 of the Small Claims Court Act;
ii. Whether the learned adjudicator erred in law on the burden of proof by awarding only Kshs. 310,000/= and declining the balance of Kshs. 565,000/=
iii. Whether this is a proper case for remittal to the Small Claims Court for reconsideration of the disputed balance.
C. ANALYSIS
i. Scope of the High Court’s jurisdiction on appeal from the Small Claims Court
10. The starting point is section 38(1) of the Small Claims Court Act, which provides that a person aggrieved by the decision of the Small Claims Court may appeal to the High Court on matters of law only.
11. This statutory limitation is important. It means that an appeal from the Small Claims Court is not an ordinary first appeal in which the High Court freely re-evaluates the entire evidence and substitutes its own factual conclusions. The High Court may interfere only where the appeal discloses an error of law.
12. The High Court has repeatedly applied this limitation. In Best Cars Limited t/a Impact Motors v Omoke & another [2024] KEHC 9594 (KLR), the Court held that section 38(1) expressly limits appeals from the Small Claims Court to matters of law only. The Court struck out grounds of appeal which were factual or mixed questions of fact and law, and retained only the ground that disclosed a pure point of law.
13. Similarly, in Directline Assurance Company Limited v Kombo [2024] KEHC 1743 (KLR), the Court dismissed an appeal from the Small Claims Court for want of jurisdiction after finding that the grounds raised matters of fact or mixed fact and law rather than pure questions of law.
14. The same approach was taken in Mbochi v Kanja [2023] KEHC 26004 (KLR), where the Court held that issues inviting the High Court to reconsider evidence and factual findings do not fall within section 38 of the Small Claims Court Act. The Court emphasised that an appeal from the Small Claims Court must be confined to matters of law.
15. In Logiserve Limited v Microsa Security Services Limited [2025] KEHC 3383 (KLR), the High Court reiterated that disputes on the contract, the amount due and the evidence presented before the Small Claims Court are factual issues, and that factual determinations by the adjudicator are generally final unless a genuine legal error is demonstrated.
16. The same principle appears in Mwangi v Mburu [2025] KEHC 6942 (KLR), where the Court struck out an appeal as incompetent because the grounds challenged the trial court’s findings on liability and quantum, which required a re-evaluation of evidence. The Court held that such an exercise was outside the High Court’s mandate under section 38.
17. Guided by those authorities, this Court must be careful not to convert this appeal into a rehearing of the factual question whether the Appellant paid the disputed Kshs. 565,000/= to the Respondent.
ii. Whether the Appellant established an error of law on burden of proof
18. The Appellant’s main complaint is that the learned adjudicator should have awarded the full amount of Kshs. 875,000/=. The Respondent admitted only Kshs. 310,000/=. The balance of Kshs. 565,000 was disputed.
19. The burden of proof in civil proceedings is governed by sections 107, 108 and 109 of the Evidence Act.
20. Section 107 provides that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which that person asserts must prove that those facts exist. Section 108 provides that the burden of proof lies on the person who would fail if no evidence at all were given on either side. Section 109 provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.
21. The general principle was stated in Karugi & another v Kabiya & 3 others [1987] KLR 347, where the Court of Appeal held that the burden remains on the plaintiff to prove his or her case on a balance of probabilities, and that burden is not lessened merely because the defendant’s case is weak.
22. Therefore, in the present matter, the Appellant bore the burden of proving that she paid the Respondent Kshs. 875,000. The Respondent’s admission of Kshs. 310,000 proved that part of the claim. The balance of Kshs. 565,000 remained disputed and had to be proved by credible evidence.
23. The learned adjudicator considered the evidence and found that the bank statement relied on by the Appellant did not show the recipient account or number for the disputed transfers. The adjudicator also noted that some entries were marked as personal use. On that basis, the adjudicator found that the disputed balance had not been proved.
24. That was a factual evaluation of the evidence. The adjudicator did not reject the Appellant’s claim for want of a technical document. He rejected the disputed balance because the evidence did not sufficiently link the disputed transfers to the Respondent.
25. The Small Claims Court is indeed not bound by strict rules of evidence. However, that does not mean a claimant is relieved of the duty to place credible material before the Court. In Mati & another v Gicheru [2025] KEHC 2062 (KLR), the High Court held that although section 32 of the Small Claims Court Act allows the Small Claims Court to receive evidence not ordinarily admissible, that provision does not absolve a party from the burden of adducing credible evidence to prove the claim.
26. That principle applies here. The Appellant did not need to prove the disputed balance with unnecessary technical rigidity, but she still had to present credible material showing that the disputed transfers went to the Respondent or were made for his benefit pursuant to the joint venture.
iii. Whether section 112 of the Evidence Act shifted the burden to the Respondent
27. The Appellant’s argument may also be understood as relying on section 112 of the Evidence Act. That section provides that in civil proceedings, where any fact is especially within the knowledge of any party, the burden of proving or disproving that fact is upon that party.
28. Section 112 is a useful evidential rule. It prevents a party from withholding facts peculiarly within that party’s knowledge and then insisting that the other party prove what the other party cannot reasonably access.
29. However, section 112 does not displace the primary burden under sections 107, 108 and 109. It does not permit a claimant to avoid laying a sufficient evidential foundation for the claim.
30. In Juma & 2 others v David [2023] KEHC 26015 (KLR), the High Court held that section 112 applies only where the relevant facts are especially within the knowledge of a party, and that the evidential burden shifts only after the claimant has laid a sufficient foundation. The Court declined to shift the burden where the claimant had not first established the necessary factual basis.
31. That reasoning is directly applicable. In the present matter, there is a distinction between two questions.
32. The first question is what happened to the vehicle after the Respondent took control of it. That may properly be a matter especially within the Respondent’s knowledge. If the issue were the whereabouts of the vehicle, whether it was sold, the sale price, or the proceeds of sale, section 112 could properly arise.
33. The second question is whether the Appellant paid the disputed Kshs. 565,000 to the Respondent. That was the fact asserted by the Appellant. The Appellant was the person relying on the bank statement and claiming that the disputed entries represented payments to the Respondent. She was therefore required to establish the necessary link between the disputed entries and the Respondent.
34. The recipient details of transfers allegedly made by or on behalf of the Appellant were matters capable of proof by the Appellant through bank transfer confirmations, recipient account details, transaction advices, M-Pesa statements, acknowledgments, WhatsApp messages, or a reconciliation showing how the disputed entries reached the Respondent.
35. The Respondent’s failure to account for the vehicle does not automatically prove that the Appellant paid him the additional Kshs. 565,000. Breach of the joint venture and proof of the amount paid are related but distinct issues.
36. Therefore, section 112 could not properly be used to cure the evidential gap identified by the adjudicator. The adjudicator did not commit an error of law by requiring the Appellant to prove that the disputed balance was paid to the Respondent.
iv. Whether section 119 of the Evidence Act assisted the Appellant
37. The Appellant relies on section 119 of the Evidence Act, which allows the court to presume the existence of certain facts having regard to the common course of natural events, human conduct and public and private business.
38. However, Section 119 is discretionary. It permits reasonable presumptions from proved facts. It does not allow the court to speculate or to replace proof with conjecture.
39. In this case, the proved facts supported the finding that there was an oral agreement and that the Respondent breached it. Those facts justified judgment for what was admitted and proved. They did not, without more, prove that the disputed bank entries were payments to the Respondent.
40. The adjudicator was therefore entitled to decline to presume that the disputed Kshs. 565,000/= was paid to the Respondent merely because the Respondent had breached the joint venture arrangement.
v. Whether this is a proper case for remittal
41. The next question is whether, even if this Court cannot award the disputed balance, the matter should be remitted to the Small Claims Court for reconsideration.
42. The Small Claims Court considered the material before it and made a finding that only Kshs. 310,000/= was proved. It did not fail to determine the issue of quantum. It determined it against the Appellant to the extent of the disputed balance.
43. To remit the matter in these circumstances would risk giving the Appellant a second opportunity to prove what she failed to prove before the trial court.
44. The law does not favour the reopening of matters merely to allow a party to fill gaps in evidence. In Wanjie & others v Sakwa & others [1984] KLR 275, the Court of Appeal held that additional evidence on appeal should not be admitted to enable a party to patch up weak points in his case or fill omissions in the evidence.
45. The same principle was restated by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR, where the Court held that additional evidence on appeal should be allowed sparingly and with abundant caution, and not for the purpose of making a fresh case or filling gaps left at trial.
46. More recently, in Freedom Limited v Mbarak [2024] KESC 76 (KLR), the Supreme Court again emphasized that additional evidence should not be introduced on appeal to fill gaps in a party’s case, and that a party must show that the evidence could not have been obtained with reasonable diligence at trial.
47. Although the present case is not an application for additional evidence, the same caution applies. A remittal which has the practical effect of reopening the evidential question would undermine the finality of trial proceedings and allow the Appellant to repair a case that was not sufficiently proved.
48. No application for admission of additional evidence was made before this Court. No complaint has been shown that the Small Claims Court refused to admit relevant evidence, denied the Appellant a fair opportunity to present her case, or ignored evidence already on the record. The complaint is simply that the adjudicator reached a factual conclusion adverse to the Appellant on the disputed balance.
49. That is not enough to justify remittal.
50. The Court of Appeal in Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123 stated the general duty of a first appellate court to reconsider the evidence and draw its own conclusions. However, that general principle must yield to the specific statutory limitation in section 38 of the Small Claims Court Act, which confines this Court to matters of law only.
51. The result is that this Court must respect the adjudicator’s factual finding unless it is shown to have been based on no evidence, a misapprehension of the evidence, or a wrong legal principle. No such error has been established here.
D. DISPOSITION
52. The learned adjudicator correctly appreciated that the Appellant had proved an oral agreement and that the Respondent had breached it.
53. The adjudicator also correctly awarded the admitted and proved sum of Kshs. 310,000/=.
54. The adjudicator’s decision to reject the disputed balance of Kshs. 565,000/= was a factual finding based on the evidence placed before the Small Claims Court. It did not disclose an error of law within section 38 of the Small Claims Court Act.
55. Section 112 of the Evidence Act did not shift the burden of proving payment of the disputed balance to the Respondent. The Appellant remained under a duty to prove that the disputed transfers were made to the Respondent or for his benefit.
56. This is also not a proper case for remittal, as remittal would amount to reopening a factual issue already determined and would risk giving the Appellant a second chance to prove a case that was not proved at trial.
57. The appeal therefore fails.
ORDERS
58. The appeal is dismissed.
59. The judgment of the Machakos Small Claims Court delivered on 5th June 2025 in SCCCOMM/E591/2024 is upheld in full.
60. For avoidance of doubt, the award in favour of the Appellant remains Kshs. 310,000/=, together with costs of Kshs. 30,000/= and interest at court rates from the date ordered by the Small Claims Court until payment in full.
61. The dismissal of the Respondent’s counterclaim is upheld there being no cross-appeal against that finding.
62. The Respondent shall have the costs of this appeal.
DATED, SIGNED AND DELIVERED THIS 30TH DAY OF JUNE 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JUSTICE JOYCE GANDANI
JUDGE
It is so ordered.